1. Formation of Contract – Orders for services (“Services”) to be provided by FourQuest Energy Inc. (“FourQuest Energy”) to its customers (each a “Customer”) shall be governed by the following general terms and conditions (“GTCs”) and any additional terms and conditions agreed to in writing by an authorized representative of FourQuest Energy (collectively the “Agreement”). These GTCs shall become binding on Customer upon the earliest of: (i) Customer’s written acceptance of these GTCs; (ii) FourQuest Energy commencing performance of the Services; and (iii) the shipment of any equipment to be used by FourQuest in performing the Services.
2. Performance Standard – FourQuest Energy warrants to Customer that it shall perform the Services in an efficient, workmanlike, skilful, professional manner and that such Services will be performed in accordance with accepted industry and engineering practice. No other warranty, express or implied is given in connection with the Services.
3. Time of Performance – FourQuest Energy will make reasonable efforts to deliver the Services within the time specified, but cannot guarantee to do so and shall not be liable for any loss or damage caused by delay regardless of the cause.
4. Force Majeure – FourQuest Energy shall not be liable for any delay or non-performance due to any cause beyond FourQuest Energy’s reasonable and direct control, including but not limited to governmental regulation or delay, landowner interference, strikes or other work stoppage or slow down, weather, floods, war, insurrection, riots, blockade and acts of God (“Force Majeure”). If performance is delayed or prevented by Force Majeure for more than ninety (90) days, either party may terminate this Agreement by written notice to the other party. Nothing in this provision shall relieve Customer from paying the costs of that portion of the Services performed by FourQuest Energy prior to the date of termination.
5. Permits – All necessary permits and licenses for the performance of the Services and the import and delivery of the equipment to be used by FourQuest Energy shall be the responsibility of Customer.
6. Transportation – Customer shall be solely responsible for and shall arrange for the safe access by FourQuest Energy to and from Customer’s property or any other property on which Customer may request Services from FourQuest Energy.
7. Work Site Conditions – Customer is solely responsible for the complete care, custody and control of the site (the “Site”) on which Services will be performed. Customer warrants that the site shall be in a good state of repair and in proper condition to permit the Services to be performed.
8. Health Safety and Environment (“HSE”) – Customer shall inform FourQuest Energy of Customer’s HSE requirements and shall make written HSE instructions available at all work sites and FourQuest Energy shall comply with same. Customer shall be responsible for the conduct of any required emergency drills and for ensuring that adequate means for emergency evacuation are in place pursuant to all applicable health and safety legislation.
9. Authorization – If Customer is not the owner or not the sole owner of the Site or the property on which the Services will be performed, Customer represents and warrants that it is the authorized and operating entity, or is the duly authorized agent of each of the owners of the Site or such property with full power to act for such owners with respect to all decisions and instructions made or given in respect of the Services to be supplied by FourQuest Energy pursuant hereto. Customer shall indemnify and shall protect, defend and hold harmless FourQuest Energy and its affiliates and their officers, directors, employees, representatives, agents, contractors and subcontractors from and against all liabilities, losses or damages, claims, demands, causes of action, suits, proceedings, costs and expenses (including legal fees and disbursements on a solicitor and client basis) (“Claims and Losses”) (of every nature and kind whatsoever, without limit, arising from the provision by FourQuest Energy of Services on property if such Claims and Losses are made or incurred because Customer was not the authorized agent of each of the owners of the Site or did not have power to act for such owners.
10. Payment Terms – Customer shall pay FourQuest Energy in accordance with FourQuest Energy’s cost estimate and schedule of rates, which can be made available upon request. Prices are subject to change without notice. Terms of payment of charges are net cash in United States Dollars within thirty (30) days from the date invoices are rendered. Any amount unpaid at the end of said thirty (30) days is subject to interest at 2% per month. If unpaid amounts are collected through legal proceedings or by a collection agent, Customer shall pay reasonable costs including solicitor and client fees and disbursements associated with such collection procedures.
11. Taxes – All charges for fees for any Services to be provided or performed hereunder by FourQuest Energy are exclusive of all assessments, fees, goods and services or value added taxes, provincial sales taxes, excise taxes, customs duties and charges imposed by any governmental authority upon or incidental to the performance of the Services, other than taxes assessed or measured by income or profit of a party (collectively “Taxes”). Customer shall pay or reimburse FourQuest Energy for any and all Taxes.
12. Confidentiality – Each party shall maintain all data and information obtained from the other party as well as information concerning the results of the Services in strict confidence, subject only to disclosure required by law and legal process unless such data, information and results are in the public domain. Notwithstanding the foregoing, FourQuest Energy shall be entitled to describe the Services and the project by title, scope, type and size and state the name of Customer in FourQuest Energy’s qualifications and its promotional materials.
13. Maintenance of Site Condition and Environment – During performance of the Services and until completion thereof, FourQuest Energy will ensure that the site is kept clean and in good repair. FourQuest shall pay and be responsible for control, disposal and/or removal of any liquid or non-liquid pollutant or waste materials, crude oil, natural gas, motor oils, lubricants, motor fuel, pipe dope, paints, solvents, whosesoever found, that is or has been accidentally discharged, leaked or spilled from its equipment being used to provide the Services. FourQuest Energy shall have no other liability in respect of spills, contamination or pollution occurring or arising during performance of the Services and Customer shall assume all liability for and defend, indemnify and hold harmless FourQuest Energy from any Claims and Losses arising out of such spills, contamination or pollution.
14. Limitation of Liability
(a) In the event that FourQuest Energy is in breach of its warranty contained in paragraph 2 hereof, Customer’s sole remedy is restricted to the reperformance of such services as FourQuest Energy has provided pursuant to this Agreement.
(b) Where FourQuest Energy uses products, materials or equipment which are not of its manufacture or where Customer uses the same during performance of the Services, Customer’s sole remedy for any loss or damages resulting therefrom will be strictly limited to such benefits as FourQuest Energy may be able to obtain from the party who manufactured the said products, materials or equipment, as the case may be.
(c) When an authorized representative of Customer verifies in writing that the Services have been satisfactorily completed in accordance with this Agreement, then Customer will thereafter have no right of action or claim whatsoever against FourQuest Energy for any matter arising out of the Services.
15. Indirect and Consequential Damages – FourQuest Energy and Customer agree that neither party shall be liable to the other party for lost profits, loss of production, business interruption losses or any indirect or consequential damages, special damages, or punitive damages arising from the performance of or failure to perform such party’s obligations under this Agreement, or from any other cause, whether arising in negligence, tort, statute, equity, contract, common law, or any other cause of action or legal theory.
16. Release and Indemnity
(a) FourQuest Energy shall release, indemnify and hold harmless Customer for Claims and Losses which Customer may suffer or incur resulting from injury to, or death of FourQuest Energy’s and its affiliates’ directors, officers, employees, representatives, agents, contractors and subcontractors (“FourQuest Group”) and for loss of, or damage to FourQuest Energy’s property or that of FourQuest’s Group, that in any way relates to the provision of any Services hereunder, except to the extent that such injury, death, or damage was caused by the Gross Negligence or Wilful Misconduct of Customer.
(b) Customer shall release, indemnify and hold harmless FourQuest Energy for Claims and Losses which FourQuest Energy may suffer or incur resulting from injury to, or death of Customer’s and its affiliates’ directors, officers, employees, representatives, agents, contractors and subcontractors (“Customer Group”) and for loss of, or damage to Customer’s property or that of Customer Group, that in any way relates to the provision of any Services hereunder, except to the extent that such injury, death, or damage was caused by the Gross Negligence or Wilful Misconduct of FourQuest Energy.
(c) Each party (the “Indemnifying Party”) shall be liable for and indemnify and save harmless the other party (the “Indemnified Party”) from any and all Claims and Losses in respect of injury or death of any person or loss of or damages to any property, which may be brought against the Indemnified Party by third parties, which are directly related to or arise from any negligent act, omission, default or representation, Gross Negligence or Wilful Misconduct of the Indemnifying Party in connections with its obligations hereunder.
(d) For the purposes of this Agreement, “Gross Negligence or Wilful Misconduct” means any act or failure to act (whether sole, joint or concurrent) by any person or entity which was intended to cause, or which was in reckless disregard of or wanton indifference to, harmful consequences such person or entity knew, or should have known, such act or failure would have on the safety or property of another person or entity; provided that Gross Negligence or Wilful Misconduct shall not include any act or failure to act insofar as it was done or failed to be done in accordance with the instructions or express concurrence of Customer.
17. Insurance – FourQuest Energy and Customer represent and warrant, each to the other, that the indemnities provided in this Agreement are fully covered by appropriate insurance or voluntarily self-insured and upon the request of a party, the other will provide a copy of its insurance policy in that regard.
18. Cancellation – Customer may terminate an order for the Services hereunder at any time prior to completion of the Services. Upon such termination, Customer shall pay Fourquest Energy for the costs of that portion of the Services performed up to the date of termination and FourQuest Energy’s demobilization costs or charges.
19. Dispute Resolution – Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules (“Rules”), which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language of the arbitration shall be English.
20. Assignment – Neither party shall be permitted to assign any of its rights or obligations under this Agreement in whole or in part, except with the express written consent of the other party, which consent shall not be unreasonably withheld.
21. Severability – All paragraphs, sentences and words used herein are separable and the invalidity or unenforceability of any such part hereof shall not affect the validity or enforceability of any other part.
22. Amendments and Waiver – No amendment or modification of this Agreement shall be deemed valid unless in writing and signed by both parties. A waiver of any breach of or failure to enforce any of the terms and conditions of this Agreement in a particular instance or instances shall not constitute a subsequent waiver thereof or preclude subsequent enforcement thereof.
23. Survival – The provisions respecting liability and indemnification shall survive termination of this Agreement.
24. Governing Law – Notwithstanding that the Goods may be delivered or the Services may be performed outside of the Province of Alberta, the parties acknowledge and agree that this Subcontract shall be governed and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to any conflict of laws principles that could require the application of any other law, and each party irrevocably agrees to the jurisdiction of the courts of the Province of Alberta and all courts of appeal therefrom.
25. Third Party Rights – No person other than a party may enforce this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
26. Entire Agreement – This Agreement constitutes the entire agreement between the parties. There are no other terms, obligations, covenants, representations, statements or conditions applicable to the agreement between the parties. Any new, different, or conflicting terms and conditions, provided before or after these GTCs and on either party’s standard forms or otherwise, are expressly rejected and shall not apply to this Agreement unless such new, different or conflicting terms and conditions are in writing and expressly agreed to and signed by both parties.
